Bureaucratic politics 101: the U.S. adjusts its position on the drug treaties

Historically, the United States was the chief architect of the prohibition-oriented international drug control regime, and among the most “hawkish” of the signatories (along with Sweden, France, Russia, Japan, and Singapore, and much of the Arab world). The U.S. did a bunch of finger-wagging at the Dutch for their relatively liberal policies. And the Bureau of International Narcotics and Law Enforcement in the State Department (“INL” in Alphabet-speak, informally “Drugs and Thugs”) has long been one of the more hawkish players in internal drug-policy debates.

The treaties, on their face, require the criminalization of not only drug dealing but drug use. One of the arguments made against the tax-and-regulation approaches adopted by initiative in Colorado and Washington State was that their adoption would put the country out of compliance with its treaty obligations. There are legal loopholes: the treaties acknowledge that their obligations apply to each signatory only insofar as consistent with its domestic institutional arrangements. Since the U.S. federal government, the party bound by the treaties, lacks the constitutional power to require criminalization at the state level, it’s not clear that the actions by Colorado and Washington State voters can be said to have been illegal under international law.

Uruguay has gone further, legalizing at the national level. The Uruguayan government argues that even that is allowed by the treaties, because the treaties recite the reduction of illegal drug trafficking and the protection of public health among their stated goals, and the Uruguayan law is designed to accomplish those goals. Whatever the merits of that argument legally – personally, I don’t think it passes the giggle test, though as a policy matter I’m glad Uruguay is making the experiment and hope it succeeds – it is one that the United States could once have been counted on to scorn.

And yet, when the U.N. Commission on Narcotic drugs met in Vienna last month, and some member countries got up to criticize the Uruguayan move (which the International Narcotics Control Board, the referee set up by the treaties, promptly denounced) the U.S. had no comment on that issue.

In part that reflects changing U.S. public opinion about cannabis, and the more liberal stance of the Obama Administration compared to its predecessors. But in part it reflects the fact that INCB also blasted Colorado and Washington State, putting INL in the position of having to defend the permissibility under international law of those regimes and of the accommodating stance toward them adopted by the Justice Department. So the voters in those two states in effect forced a change in our national stance in international fora.

Obvious, once it’s happened. (It might not have happened in, say, the Romney Administration.) But, as far as I know, not predicted in advance by anyone, least of all by me.

Footnote It would be easier to take more seriously the self-appointed “Global Commission on Drug Policy” if spokespeople such as Michel Kazaktchine didn’t insist on making nonsensical claims, such as that minor drug offenses account for half of U.S. incarceration (the actual figure is more like 20% for all drug offenses) and that prohibition has failed to reduce consumption (compared to what?) and that alcohol and tobacco control via taxation and regulation have been more successful (by what measure).

Comments

It’s funny to listen to those who work on the external vs domestic side of US policy. There is a serious disconnect in goals, messaging, and audiences. DoJ largely ignores international requirements whereas DoS has been looking for direction on the issue, doing the best it can by bobbing and weaving. State, not DoJ, has to interface with international drug control bodies, whereas Justice’s concern has been largely domestic (banking, CSA preemption, general issues related to constituencies). ONDCP, as far as I know, has been sidelined as the White House really hasn’t expended or wants to expend any political capital on the matter. But you’re right, Mark. It seems like WA & CO are setting international drug control policy, even though those that interface on the international level are largely ignorant of the intricacies of domestic regulatory issues.

“No comment” isn’t exactly leadership. The Uruguayan position tends to weaken international law in general by saying that general objectives trump specific provisions. That’s not what Article 31 of the Vienna Convention on the Law of Treaties (declaratory rather than innovative) says:

Article 31(1): A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

What Uruguay and the USA should be doing IMHO is (a) entering reservations (b) proposing amendments.

Does Mark’s 20% of incarceration for drug offences include the other crimes against property and persons committed to finance drug habits, or in the course of the drug trade, or committed while under the influence of drugs?

Actually, it might be better to just abrogate or withdraw from the treaty. It's obvious that drug policy is going to start going in a very different direction, and while I'm not going to argue there doesn't need to be some sort of a treaty (obviously, with respect to whatever drugs that the international consensus considers too dangerous to legalize, you want to be able to have cooperation to stop trafficking), it probably needs to be a very different kind of treaty that takes into account the right of state parties to make their own drug policies. (For instance, a treaty that allowed state parties to decide what drugs to legalize domestically, while prohibiting international trafficking and pledging cooperation with respect to stopping drugs from crossing borders, might work very well.) If the US pulled out of the single convention, maybe work would start on negotiating a new agreement.